Citation Nr: 1305704 Decision Date: 02/19/13 Archive Date: 02/27/13 DOCKET NO. 09-24 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for residuals of a right hand contusion. 2. Entitlement to an effective date prior to November 24, 2008 for the grant of service connection for residuals of a left ankle sprain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active military service from July 1995 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) that granted compensation benefits pursuant to 38 U.S.C.A. § 1151 for residuals of a right hand contusion and assigned a 10 percent rating effective December 7, 2006; and an August 2009 rating decision that granted service connection for residuals of a left ankle sprain and assigned a 10 percent rating effective November 24, 2008. The Veteran testified at a personal hearing before the undersigned Veterans Law Judge in Washington, D.C. in January 2013. A transcript of the proceeding is included in her Virtual VA record. The issue of entitlement to an initial rating in excess of 10 percent for residuals of a right hand contusion is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran did not file a claim for service connection for a left ankle disability within one year of her separation from service. 2. The Veteran's initial claim of service connection for a left ankle disability was received in November 2003 and denied by the RO in a February 2005 rating decision; she did not file a notice of disagreement with the determination after she was notified of the decision in February 2005 and additional evidence was not received within the one-year period following notification of the denial. 3. The Veteran submitted a request to reopen her claim for service connection for a left ankle disability that was received by the RO on November 24, 2008. CONCLUSION OF LAW The criteria for the assignment of an effective date prior to November 24, 2008, for the grant of service connection for residuals of a left ankle sprain have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist As provided by the VCAA, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). This appeal arises from the Veteran's disagreement with the effective date assigned following the grant of service connection for residuals of a left ankle sprain. So the claim, as it arose in its initial context, has been substantiated, indeed granted. Therefore, additional VCAA notice concerning a "downstream" issue such as the effective date assigned for this grant is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel also has held that no additional VCAA notice is required in this circumstance for such a downstream issue, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The Board is bound by VA General Counsel opinions, as the Chief Legal Officer of the Department. 38 U.S.C.A. § 7104(c) (West 2002). Instead of issuing an additional VCAA notice letter in this situation concerning the downstream earlier effective date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a statement of the case if the disagreement is not resolved. Additionally, since the RO issued a statement of the case in January 2010 and a supplemental statement of the case in June 2012 addressing the downstream effective date claim, which included citations to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an effective date earlier than November 24, 2008, the Board finds that no further notice is required. See also Goodwin v. Peake, 22 Vet. App. 128 (2008); Huston v. Principi, 17 Vet. App. 195 (2003). Moreover, in January 2013, the Veteran was provided an opportunity to set forth her contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the January 2013 hearing, the undersigned Veterans Law Judge enumerated the issue on appeal. See BVA Hearing Transcript at 2. The Veteran's contentions regarding her earlier effective date claim were addressed. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. No outstanding evidence pertaining to the matter has been identified. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records, as well as the identified VA and private treatment records. Thus, VA has complied with its duty to assist, and under the circumstances presented here, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). In sum, VA has satisfied its duty to inform and assist the Veteran at every stage in this case; at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. Legal Criteria for an Earlier Effective Date Generally, the effective date for the grant of service connection for disability compensation will be the day following separation from active service or the date entitlement arose, if the claim is received within 1 year after separation from service. The effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2012). A claim must be filed in order for any type of benefit to accrue or be paid. 38 U.S.C.A. § 5101(a) (West 2002); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2012); see also Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2012). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A report of examination or hospitalization will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157 (2012). Evidence from a private physician or layman will also be accepted as an informal claim for increased benefits, effective from the date received by VA. 38 C.F.R. § 3.157(b)(2) (2012). Medical records cannot constitute an initial claim for service connection; rather there must be some intent by the claimant to apply for the benefit. Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). In documents dated in, and received by the RO in, November 2003, the Veteran filed her original claim of service connection for a left ankle disability. In a February 2005 rating decision, the RO denied the claim, concluding that it was not shown that the Veteran had a left ankle disability that was incurred in or aggravated by active service. Under cover letter dated February 15, 2005, the Veteran was informed of the determination and advised that she had one year from the date of the letter to express disagreement with the RO's determination. The Veteran did not file a notice of disagreement with the determination or any other communication that could be construed as a notice of disagreement within one year of the cover letter. Additionally, she did not submit any additional evidence pertaining to the matter within one year of the cover letter. After the February 2005 denial, her next communication with the RO was in December 2006 when she filed a claim for compensation benefits pursuant to 38 U.S.C.A. § 1151. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010) (holding that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, and if the new submission may support a new claim). No additional service department records were associated with the file either. See 38 C.F.R. § 3.156(c) (2012). Consequently, the Board concludes that the February 2005 rating decision became final as of February 15, 2006. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302 (2012) (A rating decision becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits). On November 24, 2008, the RO received the Veteran's application to reopen the claim of service connection for a left ankle disability. After the notice and duty to assist provisions had been completed, the RO reopened the claim based on the receipt of new and material evidence and granted service connection for residuals of a left ankle sprain effective November 24, 2008, the date the reopened claim was received, in accordance with 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400. There are no earlier documents in the file dated between the notice of the February 2005 RO rating decision and the Veteran's November 2008 claim that may be construed as an informal claim for the purpose of assigning an earlier effective date for the grant of service connection. A January 2006 VA treatment note included reference to ankle arthralgia on a comprehensive problem list. However, there was no specific evaluation of the Veteran's ankle or a specific reference to the left ankle. Therefore, the Board finds that this treatment report does not fall with the purview of 38 C.F.R. § 3.157 (2012). Consequently, under the facts presented here, November 24, 2008 is the earliest date that may be assigned for the grant of service connection for residuals of a left ankle sprain based on the receipt of new and material evidence to reopen the claim. See 38 C.F.R. § 3.400. Hence, an earlier effective date is not warranted. ORDER An effective date prior to November 24, 2008 for the grant of service connection for residuals of a left ankle sprain is denied. REMAND At her personal hearing before the undersigned Veterans Law Judge in January 2013, the Veteran testified that she had received recent treatment for her left hand contusion residuals, including treatment for nerve problems that resulted from the injury. She stated that she had undergone EMG and nerve conduction studies at the VA Medical Center (VAMC) in Washington, D.C., and that she had a follow-up appointment after those tests in two weeks. She also stated that the doctors had correlated her weak grip complaints to the nerve issue. These treatment reports are not in the Veteran's claims folder and have not been attached to her Virtual VA record. The Veteran's most recent VA examination pertaining to her hand disability was conducted less than one year ago in April 2012. However, no findings pertaining to nerve damage or nerve impairment were recorded in the examination report. In light of the Veteran's recent assertions at her hearing, the Board finds that additional development is necessary. The outstanding treatment reports identified by the Veteran should be obtained and associated with the claims file. Additionally, if the new evidence demonstrates nerve damage due to the right hand contusion, another VA examination may be necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the names and addresses of all medical care providers who treated the Veteran for residuals of a right hand contusion since April 2012. In particular, the RO should obtain records from the Washington, D.C. VAMC pertaining to EMG and nerve conduction studies performed in late 2012 or early 2013 as well as any follow-up neurology consultation notes identified by the Veteran at her January 2013 hearing. After securing any necessary release, the RO should obtain these records. 2. If the additional evidence demonstrates that the Veteran has nerve impairment in the right hand, the RO should schedule the Veteran for an appropriate examination to ascertain whether any clinically demonstrated nerve impairment in the right hand is a residual of the initial contusion injury she sustained and to ascertain the current and severity of the right hand contusion residuals. The claims folder should be made available to the examiner for review before the examination. All necessary special studies or tests are to be accomplished. The examiner should examine the Veteran, review the claims folder and answer the following question and identify the basis upon which the opinion is based: Is it at least likely as not (a 50 percent probability or greater) that the Veteran has nerve impairment in the right hand as a result of the contusion she sustained? The examiner should specifically explain any objective clinical findings found on evaluation to support the relevant diagnoses. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs